In uncertain times, it can be helpful to remember what we can do to plan for our own health, security, and well-being. In the past, we have blogged about “longevity planning” (i.e. advice for longer life expectancy) and the resemblances it has to executing powers of attorney for personal care (“POA PC”).
In Ontario, powers of attorney for personal care are generally governed by the Substitute Decisions Act, 1992 (the “SDA”). The Health Care Consent Act, 1996 also applies to certain decisions made by attorneys for personal care.
Personal care decisions are about health care, medical treatment, diet, housing, hygiene, and safety. An attorney for personal care will be able to make almost any decision of this nature that the grantor would normally make for him/herself when they were capable.
According to the SDA, an attorney for personal care must follow the known wishes of the grantor or make decisions in the best interest of that person. In doing so, the attorney must choose the least restrictive and intrusive course of action that is available and is appropriate in the circumstances.
If you are appointed as an attorney for personal care, below is a non-exhaustive list of steps you should take or obligations you may have:
- Obtain a copy of the POA PC and determine whether it is in effect. The POA PC only comes into effect once the grantor is incapable of making his or her personal care decisions.
- Determine whether there are any specific instructions/restrictions in the POA PC.
- Encourage the grantor’s participation in decision-making and try to foster the grantor’s independence as much as possible.
- Encourage and facilitate communication between the grantor and his/her family and friends.
- Consider developing a guardianship plan. While this is not mandatory for an attorney whose powers stem from a POA PC, it may help provide a roadmap for future decisions.
The above checklist is non-exhaustive list of some of the obligations an attorney for personal care have. Section 66(4) of the SDA also sets out a number of factors to consider when determining what personal care decisions are in the incapable person’s best interest. Most importantly, an attorney for personal care must not lose sight of the fact that he/she is a fiduciary and held to a higher standard.
Making decisions as an attorney can be difficult, particularly in uncertain circumstances. It is important to be prepared. The Ministry of the Attorney General also provides some useful information about an attorney’s obligations here. A lawyer should be consulted so the attorney understands their duties.
Thanks for reading!